A family lawyer is often approached with questions related to the right to housing. It is quite common for a couple to live in an apartment that belongs to one of them as private property, and after the divorce, the issue of eviction and deregistration of the place of residence of the person who does not own the apartment arises.
After the divorce, the owner may face a number of problems , including:
- the ex-husband/wife moved to another place after the divorce, but did not deregister voluntarily
- a former family member moved to a permanent place of residence abroad, did not check out of the apartment, and cannot be contacted
- the person does not live in the residential premises of the former partner, but insists on the right of use, because it is registered in it
- the person continues to live in housing that belongs to the ex and does not want to leave
It would seem that the rights of the owner to own, use and dispose of his property, including real estate, cannot be limited. Moreover, the fact of registration of a former relative in the residential premises may affect the possibility of alienation of housing, because the buyer is unlikely to want to purchase housing with third parties registered in it. Then why is it so difficult to evict and discharge a person, and in many cases a lawyer has to be involved ?
It is worth distinguishing between the concepts of ownership of real estate and the right to housing. The latter is guaranteed and protected by both national and international legislation.
The Constitution of Ukraine in Art. 47 states that everyone has the right to housing and no one can be forcibly deprived of housing other than on the basis of the law by a court decision.
Art. 8 of the Convention on the Protection of Human Rights and Fundamental Freedoms enshrines the right of everyone to respect for his private and family life, his home and correspondence.
Ch. 4-5 Art. 319 of the Civil Code of Ukraine, when exercising his rights and fulfilling his duties, the owner is obliged to observe the moral principles of society. The owner cannot use the right of ownership to the detriment of the rights, freedoms and dignity of citizens, public interests, to worsen the ecological situation and natural qualities of the land.
LET’S CONSIDER THE ALGORITHM OF ACTIONS IN DIFFERENT SITUATIONS, DEPENDING ON WHETHER A FORMER FAMILY MEMBER LIVES IN YOUR HOME OR NOT
What to do if the ex moved to another place after the divorce, but did not deregister voluntarily?
Judicial practice contains different wording of claims in such cases. The most common:
- a lawsuit to remove obstacles in the exercise of the right to use and dispose of property and deregistration of a person’s place of residence
- lawsuit for termination of the right to use residential premises
- a lawsuit to eliminate obstacles in the disposal of property by terminating the right to use residential premises
- a lawsuit to remove obstacles to the use of residential premises by evicting a person
Normative basis for substantiating claims:
According to Art. 391 of the Civil Code of Ukraine, the property owner has the right to demand the removal of obstacles to his exercise of the right to use and dispose of his property.
According to part 1-2 of Art. 319 of the Civil Code of Ukraine, the owner owns, uses and disposes of his property at his own discretion and has the right to take any actions with respect to his property that do not contradict the law.
Part 2 of Art. 406 of the Civil Code of Ukraine indicates that the easement (the right of limited use of someone else’s real estate is not related to the deprivation of the owner of real estate of the rights of ownership) can be terminated by a court decision at the request of the owner of the property in the presence of circumstances that are of significant importance.
Modern judicial practice follows the path of recognizing the fact of the termination of family relations as a circumstance that is of significant importance for the termination of the easement at the request of the owner. So, after a divorce, the ex-husband or wife ceases to be a member of the family, and accordingly loses the right to easement.
- documents confirming the dissolution of marriage
- evidence of the person’s new place of residence
- acts of inspection of housing by communal services
- evidence of the actual release of housing
- testimony of witnesses
WHAT SHOULD YOU DO IF YOUR EX-HUSBAND OR WIFE CONTINUES TO LIVE IN YOUR HOME AND DOES NOT WANT TO MOVE OUT?
In this case, it is necessary to file a lawsuit for forced eviction from places of permanent residence. The regulatory framework is similar, but in such cases there are certain peculiarities related to the right to housing. It is much more difficult to evict a person than to recognize a person who does not live in a residential premises as having lost the right to use it.
Thus, the latest judicial practice states that the owner has the right to demand the removal of obstacles to the exercise of the right to use and dispose of his residential premises by removing obstacles to the use of the property, eviction and, if necessary, removal of the person from the registration register, but this right depends on the resolution of the issue of the right of such a person to use residential premises in accordance with the norms of housing and civil legislation .
The Supreme Court of Ukraine in its ruling dated January 24, 2019 in case No. 757/7180/15-ts indicated: “Evicting a person from housing without providing another living space is possible under the conditions that such interference with a person’s right to respect for housing is provided for by law, pursues legitimate purpose defined in Art. 8 of the Convention on the Protection of Human Rights and Fundamental Freedoms, and is necessary in a democratic society. Compliance with the last criterion is determined by taking into account whether there is an urgent social necessity for the application of such a restriction of the right to respect for housing and whether the interference with this right will be proportionate to the pursued legitimate goal .
Therefore, in this category of cases, special attention should be paid to evidence of real obstacles in the use of residential premises . In particular, evidence may include:
- documents confirming the dissolution of marriage
- evidence of non-payment of utilities to a former family member
- appeal to law enforcement agencies
- testimony of witnesses
- evidence of domestic violence, if any
HOW TO EVICT A FORMER FAMILY MEMBER FROM THE APARTMENT?
To do this, you need to contact the Center for the provision of administrative services with the following documents:
- application for deregistration of the former family member’s place of residence
- a court decision on deprivation of the right to use residential premises or eviction
The decision on deregistration or refusal to deregister a person’s place of residence is made by the registration body on the day of the person’s application or on the day of receipt of documents from the administrative services center.
The European Court of Human Rights in one of its decisions defined housing as a concept that is not limited to the premises in which a person resides legally or which was legally established, but depends on the actual circumstances, namely the existence of sufficient and long-term ties with a specific place Loss of housing by any person, according to the European Court of Human Rights, is an extreme form of interference with the right to housing.
The easiest and fastest option for action in such cases is amicable agreements with a former family member. If they do not act, the law offers legal mechanisms for solving the problem of residence and registration of former family members in residential premises, which are quite effective and efficient.